Breach of Duty

The task of determining whether a duty of care has been breached involves a comparison of the defendant’s conduct with the ‘standard of care’ required by the duty. Whenever the defendant’s conduct falls below the required standard of care, the duty is seen to be breached. Conversely, when the defendant’s conduct meets or exceeds the standard imposed by law, no liability arises under the tort of negligence, irrespective of the existence of harm caused to the plaintiff.

Thus, in deciding whether a duty of care has been breached, it is first necessary to ascertain the content of the duty (assuming, of course, the existence of a duty of care has already been established)

In Victoria we now look at legislation as opposed to Wyong. There’s no uniform approach since reforms were implemented. In Victoria, the reforms were implemented in the Wrongs Act

What is Negligent conduct?

The nature of the inquiry at the breach stage is to determine whether, by what the D has specifically done or not done, the D has behaved sufficiently carelessly such as to constitute negligence at law.
Broadly this involves a two-fold task:
- Establishing the standard of care against which the D will be assessed;
- Determining whether, by what the D has done or not done, the D meets or falls short of the expected standard of care.
The Wrongs Act plays a significant role
There are no degrees of breach
Past findings of a breach are only guiding and not binding upon later cases: Qualcast (Wolverhampton) Ltd v Haynes 1959
- This is because determining whether specific conduct falls short of the standard of care is a question of fact determined in light of the particular details of each case;
- There are infinite variations on any given scenario that may warrant a different finding on breach even in prima facie similar situations

The reasonable person

48. General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless-

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” Blyth v Birmingham Water-works Co

The legal standard is not that of the defendant but that of a person of “ordinary prudence” Vaughan v Menlove 1837
“The standard of foresight of the reasonable man … eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question” Glasgow Corporations v Muir 1943

Is the standard objective or subjective?

The definition of the reasonable person is not complete unless the words “in the circumstances” are embodied.
These words may prevent the test from being wholly objective, for the boundary between the external facts and the quality of the actor is ill defined.
There is a danger that ‘reasonable person’ will simply operate as a cloak of objectivity and that all persons will continue to be judged by masculine standards rather than by a gender neutral concept.

Minority

There is no rule of law that would preclude a child of any particular age from being capable of such negligence, although it would be proper to assume that a very young child is incapable of taking care of itself unless there is evidence that the particular plaintiff was capable of doing so Cronan v Hepburn 1958
Age is a relevant consideration, and minors have been held not guilty of contributory negligence where adult, would, on similar facts, have been deemed to be so.
The question is: what degree of care for their own safety can be expected of minors of that particular age and experience

McHale v Watson

The defendant was 12 years old and the claim was dismissed, holding that he could not reasonably be expected to show the same degree of foresights and appreciation of the risk that might have been required from an adult
A child will be held to the standard of care of an ordinary child of comparable age
Childhood is not an idiosyncrasy but a normal stage of development. The defence of childhood is therefore not personal to the defendant; it is rather to be seen as ‘characteristic of humanity at the defendant’s stage of development and in that sense normal Kitto J
- It is open as to whether the particular child’s intelligence and experience further modifies the standard, but the better view is that it does not.
McHale v Watson have adopted an approach which entails asking whether the defendant had exercised the care reasonably to be expected of an ordinary child of the same age, intelligence and experience. This was supported in Ryan v State Rail Authority of NSW

Old age; physical and mental infirmities

It is unclear to what extent the standard of a reasonable person will be adjusted by the courts to allow for the incapacities and infirmities of individual adults.

Mental Infirmities

In Australia, even though there is little judicial authority, it suggests that insanity is not a defence and that insane persons should bear responsibility for damage caused by their tortious acts of the basis that, where one of two innocent persons must bear a loss, the loss should fall on the actor
However, any observable mental or physical deficient of the plaintiff may, additionally, be a material factor in determining whether the defendant was negligent.
- The driver of a car will not be at fault because a pedestrian, suffering from a “hidden” abnormality, suddenly and without warning acts abnormally. Cotton v Commissioner for Road Transport and Tramways
- Different standards apply for a circumstance where a driver is approaching someone who is in some way abnormal, eg appears to be drunk, blind etc.
In Roberts v Ramsbottom, where the defendant collided with another on the road because he had suffered a mild stroke, was liable of negligence. His standard of care while on the road was to be assessed objectively disregarding any mental incapacity short of automatism, just as any physical infirmity or inexperience would have been disregarded if such a defendant had elected to drive.
A defendant with a mental impairment– which may reduce their cognitive and foresight capacities - will still be held to the standard of a reasonable mentally competent person: Carrier v Bonham

Carrier v Bonham

A chronic schizophrenic sufferer attempted suicide by stepping in front of a bus, holding him liable in negligence
The judge distinguished it from McHale v Watson and said that as unsoundness of mind is not a normal stage of development “it attracts sympathy but not immunity”

Physical Disabilities/Old Age

Defendants’ physical characteristics, but not their mental powers, must be considered.
- “When a man has a distinct defect of such a nature that all can recognise it as making certain precautions impossible, he will not be held answerable for not taking them” Holmes, The Common Law
There is very little authority as to whether this is taken into account in setting the standard
It is likely that even if it were, the operative issue would be whether the person was negligent for having allowed themself to be in the risk creating situation in the first place in light of their disability.
The High Court has held that the law permits a subjective test where the issue is one of contributory negligence; accordingly, person suffering from a disability are required only to take such reasonable care for their own safety as their infirmities permit
In Daly v Liverpool the court looked at the age of the 67 year old woman in determining whether there was contributory negligence in her crossing the road, not a hypothetical person
However, any observable mental or physical deficient of the plaintiff may, additionally, be a material factor in determining whether the defendant was negligent.
- The driver of a car will not be at fault because a pedestrian, suffering from a “hidden” abnormality, suddenly and without warning acts abnormally. Cotton v Commissioner for Road Transport and Tramways
The courts have tended to allow some sympathy for people who are thrown into a critical position. However this would only occur if they had no time at all to react. In Roberts the court held that if a defendant was in a state of automatism when the negligent act occurred but had been aware of symptoms and ignored them, they will be guilty.

Intelligence

A person’s actions must conform to certain criteria expected of a person of normal intelligence in a given situation
It is no defence that defendants acted “to the best of their own judgment”
It is presumed that a person whose reactions are slower than average is not excused
Probably, a person whose intelligence is superior or whose reactions are quicker than average is not liable for failing to use those qualities.

Knowledge

Memory and experience

If X had been on a certain highway man times, and a reasonable driver who had been there as often would know that it was busy, then X is also expected to know, even though X’s memory is so poor that X does not remember it.
One is also deemed to know those things which adults from their experience are expected to know: eg. That some things easily explode, law of gravity
However, where the status of the person is relevant then the standard is that of a person in that position. In The Wagon...

#6911 - Torts B Extended Breach Of Duty - Torts Law

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